Memorandum by Joan Ryan, MP, Parliamentary
Under-Secretary of State for nationality, citizenship and immigration,
the Home Office
THE OPERATIONAL
MANAGEMENT OF
SIS II BY THE
COMMISSION, AND
WHETHER THE
RULES ENSURE
ACCOUNTABILITY
During discussions on SIS II, the provisions
on management of the system have been extensively discussed, in
order to ensure that the system continues to function effectively
during the transition from SIS I+ to SIS II, while being established
on a firm legal base.
As a result, the provisions relating to management
have been amended, allowing for a short- and long-term solution
to the management of SIS II. In the short term, the Commission
will be responsible for management of SIS II. In practice, it
will delegate this responsibility to the authorities in the Member
States where the existing system, SIS I+, is located (France and
Austria). There are clear rules on how responsibility will be
delegated, and the duties and obligations on the Commission and
the authorities to which management is delegated.
In the long term, it is unlikely that the Commission
will be given responsibility for the operational management of
SIS II. Several options have been proposed for the long-term solution
for management of SIS II. These include management by Frontex
(the European borders agency), Europol, the Commission, or a new
cross-pillar agency. Of these the first two have been rejected.
The UK does not participate in Frontex (which is purely first
pillar), and Europol is a third pillar body funded by the Member
States rather than the Community budget, so neither is ideally
suited to hosting a database holding both first and third pillar
data. Management by the Commission proved unpopular with most
Member States.
Most Member States support the creation of a
new cross-pillar agency to manage SIS II, subject to a suitable
impact assessment. The legal instruments therefore provide for
a Management Authority to be responsible for the long term operational
management of SIS II. The advantage of a cross-pillar agency is
that it would reflect the first-pillar immigration content of
SIS II, as well as the third pillar law enforcement content. The
Government believes that this option provides the most sensible
solution to management of SIS II in the long term, and will ensure
that the Commission conducts a full impact assessment and considers,
among other things, whether or not SIS II should be co-located
with any other EU database. The legal instrument contains strict
rules on security and confidentiality and record keeping that
must be complied with by the Management Authority.
THE IMPLICATIONS
OF INCLUDING
BIOMETRIC DATA
The addition of biometric data into the SIS
II will provide significant improvements to the accuracy of the
system making misidentification less likely. The insertion and
use of biometric data will be subject to strict controls. Searching
using biometric data will not be permitted until the necessary
technology is available, which will ensure that misidentification
of persons is minimised. Additionally, where there is a possibility
that confusion may arise between the subject of a SIS II alert
and another person, adding biometric data will greatly aid the
prevention of the negative consequences arising from misidentification,
as it will be possible to quickly establish where an individual
is not the same person against whom an alert has been issued.
The Government believes that there are strict safeguards in place
to ensure that the addition of biometric data into SIS II will
not compromise data protection.
THE PROVISIONS
ON ALLOWING
INTERLINKING OF
ALERTS
Allowing alerts to be linked will improve the
functioning of the system. Links between alerts will not be allowed
unless there is clear operational need for a link to be made.
The Government believes that linking alerts will help with the
aim of SIS II, ie the prevention, detection and investigation
of crime. For example, the details of a stolen car in which it
is believed an abducted child is being transported are linked
to the alert on the missing child. Should the car be stopped and
checked, the authority consulting SIS II will be informed that
there is a link to a missing child. This will enable further enquiries
to be carried out. Permitting links to be made will mean that
SIS II is useful from an operational point of view. However, the
legal instrument makes it clear that where there is no authorisation
for a link to be viewed, the link will not appear when SIS II
is searched. For instance, if there is a link between an alert
on a stolen vehicle and an alert on refusal of entry, the UK will
be able to see the alert on the stolen vehicle but will not see
either the existence of a link or the entry refusal alert, since
it does not have access to data on entry refusal.
THE CRITERIA
FOR LISTING
PERSONS TO
BE REFUSED
ENTRY
The UK will not participate in the immigration
provisions of SIS II; however the criteria for entering alerts
on refusal of entry have been the subject of much debate. The
text as amended requires entry refusal alerts to be entered into
SIS II on the basis of an individual decision: ie decisions must
be made on a case-by-case basis, so that the maximum amount of
clarity and accountability is retained. The exception to this
rule are the provisions for entering alerts based on UN travel
bans, which have already been issued subject to stringent checks.
THE APPROPRIATENESS
OF INCLUDING
THIRD-COUNTRY
NATIONAL FAMILY
MEMBERS OF
EU CITIZENS
A recent ECJ case (Case C-503/03) found that
Spain was in breach of EC law when it automatically refused to
grant a visa to a third country family member of an EU citizen
based on an entry refusal alert in SIS II. The court ruled that
a Member State may not automatically refuse entry to a third-country
national family member of an EU citizen to the Schengen area on
the basis of an alert in the Schengen Information system without
further consideration. The Council has taken note of this judgement
and it is envisaged that amendments to the text will be made to
reflect the ECJ's decision.
THE CLARITY
OF RULES
GOVERNING COLLECTION
OF AND
ACCESS TO
DATA, INCLUDING
THE DESIRABILITY
OF GRANTING
ACCESS TO
IMMIGRATION DATA
TO POLICE
AND ASYLUM
AUTHORITIES
The UK does not participate in the immigration
and border control provisions of the Schengen Acquis, and has
no right of access to immigration data contained in the SIS II
(covered by the SIS II Regulation) for immigration and border
control purposes.
The Government does however believe that there
are operational grounds for sharing between law-enforcement the
limited category of information on persons who are considered
a threat on the basis of public security. In this context, it
may be appropriate (subject to strict criteria) to allow limited
access to immigration data for law enforcement and asylum authorities.
Transition from SIS I to SIS II does not however mean that the
UK can re-negotiate the basis upon which it participates in the
Schengen Acquis. The UK would not be able to access immigration
data for immigration purposes as part of these negotiations.
THE ADEQUACY
OF DATA
PROTECTION RULES,
IN PARTICULAR
AS REGARDS
DATA WHICH
MAY BE
TRANSFERRED TO
THIRD COUNTRIES
The data protection regime for SIS II has been
the subject of much debate during negotiations. The regime envisaged
for the system is one which gives responsibility for the supervision
of the management authority to the European Data Protection Supervisor
(EDPS), and supervision in each Member State to the national supervisory
authority (the Information Commissioner in the UK). There are
provisions for cooperation between the national supervisory authorities
and the EDPS in order to examine cross-cutting issues. There are
also stringent rules on monitoring access, ensuring that adequate
training is given for those who access the system, and purpose
limitation provisions so that data can only be accessed by authorised
personnel within the limits of the purposes defined in the legal
instruments. The Government is content that these rules allow
for a high standard of data protection, as well as ensuring a
secure and effective system. There is no provision in the SIS
II text for SIS II data to be transferred to third countries who
will not participate in SIS II. Data will therefore not be transferred
to third countries. Where it is envisaged that data will be shared
with other parties (for instance Europol and Eurojust), the data
protection regime has been robustly drafted to ensure that data
is not misused.
THE IMPLICATION
OF THE
PLANS ON
INTEROPERABILITY OF
EU DATABASES
The communication on interoperability was published
by the Commission on 29 November 2005. The Government supports
in principle efforts to improve the efficiency of existing databases,
with due respect given to the limitations and constraints upon
access. Interoperability or linkage of databases must not result
in a situation where information on one database can be accessed
without permission via another database.
THE UNITED
KINGDOM'S
POSITION ON
THE SIS, PARTICULARLY
THE NEED
FOR ACCESS
BY THE
UK TO IMMIGRATION
DATA
The UK participates in the law enforcement (third
pillar) aspects of the Schengen Acquis, but does not participate
in the first pillar immigration and border control measures (as
set out in Council Decision 2000/365/EC and Council Decision 2004/926/EC).
Negotiations on the SIS II legal base are not an opportunity to
change the terms of the UK's participation in the Schengen Acquis.
Whilst the Government believes that there may be operational merit
in accessing and exchanging entry refusal data contained in the
SIS II for purposes other than border control (for instance law
enforcement or asylum purposes), it accepts that the UK has no
right to access immigration data for immigration purposes given
that we have not acceded to the border control aspects of Schengen.
13 July 2006
| 
